Constitutionality of Proposed Regulations of Joint Committee on Printing

Constitutionality of Proposed Regulations
of Joint Committee on Printing
Proposed regulations issued by the Jo in t Committee on Printing, which purport to regulate a
broad array o f printing activities o f the Executive Branch, are not authorized by statute.
T he proposed regulations are unconstitutional on tw o grounds. First, because members of the
Joint Com m ittee on Printing are n o t appointed in accordance with the Appointments Clause,
art. n , § 2, cl.2 o f the Constitution, they may not perform Executive functions, such as
rulem aking, which m ay be perform ed only by properly appointed Officers of the United
States. Second, the delegation of legislative power to the Joint Committee on Printing violates
the constitutional requirements fo r legislative action, bicameral passage and presentment to
the President.
April 11, 1984
M em orandum O p in io n for th e C o un sel to the D ir e c t o r ,
O f f ic e o f M anagem ent and Budget
This responds to your request for our opinion on the constitutionality, in
light of the Supreme Court’s decisions in Buckley v. Valeo, 424 U.S. 1 (1976),
and 1 N S \. Chadha, 462U.S.919(1983),of the proposed regulations published
by the Joint Committee on Printing on November 11, 1983. For the reasons
discussed below, we conclude that the regulations are statutorily unsupported
and constitutionally impermissible.
The proposed regulations would effect a significant departure from the
historical role of the Joint Committee on Printing (JCP).1 Specifically, they
would redefine “printing” to encompass virtually all processes by which leg­
ible material is created or stored, thus increasing the number of activities
purportedly subject to JCP oversight and control. These activities include,
among others, planning and design of government publications (defined to
mean any textual material reproduced for distribution to government depart­
ments or to the public), word processing, data storage and document retrieval,
apparently subsuming the operation of every copying facility of a department.
The proposed regulations would require executive departments to submit an­
nual plans outlining their intended activities and to seek advance approval of
all projected goals, policies, strategies, purchases, publications, and means of
distribution. In addition, departments would be asked to submit plans for a
1 This is not to say that the current role of the JCP necessarily enjoys statutory authority or constitutional
sanction. We have not attempted to evaluate those issues in this memorandum.
42
second and third year, seeking JCP approval of all projections relating to the
expanded concept of printing. These obligations would “provide the committee
with a broader and better overview of all of the Federal Government’s printing
and publishing activities.” 129 Cong. Rec. 32286 (1983) (remarks of JCP
Chairman Hawkins). The revised regulations, governing storage, duplication
and distribution of information, “seek to replace JCP micro-management pro­
cedures with oversight and policymaking functions.” Id.The JCP is composed of the Chairman and two members of the Committee
on Rules and Administration of the Senate and the Chairman and two members
of the Committee on House Administration of the House of Representatives. 44
U.S.C. § 101. Vacancies are filled by the President of the Senate and the
Speaker of the House of Representatives. Id. § 102. The authorized functions
of the JCP are specified in various provisions of 44 U.S.C.
This memorandum will address, in turn, the three major legal issues sug­
gested by these regulations: (1) whether there is statutory authority for the
proposed regulations, (2) whether the regulations would involve congressional
performance of executive functions, and (3) whether a joint committee of
Congress is seeking to exercise legislative power. We conclude that the pro­
posed regulations fail on all three grounds.2
I. Statutory Authority
The first issue we address is the statutory basis for promulgation of these
“legislative” rules. The Printing and Documents statute, 44 U.S.C., contains
three sections upon which the JCP relies for its “regulatory” authority. The first
is 44 U.S.C. § 103, which allows the JCP to “use any measures it considers
necessary to remedy neglect, delay, duplication, or waste in the public printing
and binding and the distribution of Government publications.” Second, § 501
provides that all government printing, binding, and blank book work shall be
done at the Government Printing Office (GPO), except: (1) work the JCP
considers “to be urgent or necessary to have done elsewhere” and (2) printing
in field plants operated by executive or independent departments, “if approved
by the Joint Committee on Printing.” Finally, § 502 provides that if the Public
Printer is unable to do certain printing work at the GPO, he may enter into
contracts to have the work produced elsewhere, “with the approval of the Joint
Committee on Printing.” As far as we are aware, these statutory provisions
constitute the full extent to which the entire Congress might have been said to
empower the JCP to participate in the decisionmaking process involving print­
ing and distribution of materials published by the Executive Branch.
The proposed regulations were published in the Congressional Record on
November 11,1983, a gesture apparently not mandated by any existing statute.
2 B ecause we conclude that the regulations as a w hole cannot legally be enforced against the Executive
Branch, w e do not seek in this m emorandum to discuss the legality o f various provisions o f the regulations
individually. C onsequently, we have not attem pted to resolve the specific question raised in your request
regarding the regulations’ apparent effect o f transferring to the G PO revenues that ordinarily would be paid
into the accounts o f individual agencies o r the U nited States Treasury.
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Nor are we aware of any other procedural requirements that might apply to
promulgation of “regulations” such as these. Although Congress has enacted
an elaborate scheme in the Administrative Procedure Act (APA) to control the
issuance of regulations by executive agencies and to protect the persons subject
to them by requiring broad opportunity for public notice and comment and
availability of an administrative record reflecting these comments, we do not
know of any analogous protections for those putatively subject to “legislative
regulations.” On the one hand, for the reasons stated in Part II of this memoran­
dum, “legislative regulations” can apply only internally in Congress. Therefore
one would not necessarily expect a scheme such as the APA to apply. On the
other, it could also be assumed that had Congress contemplated or intended to
authorize a committee’s issuance of broad, binding regulations that could have
an effect on the public and on the Executive Branch, it might have enacted a
procedure comparable to the APA to ensure that the practice comports with the
principles of due process. Thus, it could be argued that it is doubtful that
Congress intended to authorize this committee to assume a regulatory role with
respect to persons outside the Legislative Branch. See INS v. Chadha, 462 U.S.
at 951.
At the very least, authority to regulate in a sweeping fashion cannot be
presumed without an express indication that Congress has specifically del­
egated regulatory power.3 The three statutory provisions mentioned above fall
far short of a clear delegation of regulating authority.
A. 4 4 U.S.C. § 103The first, § 103 was originally enacted in 1852 in the following form:
The Joint Committee on Printing shall have power to adopt such
measures as may be deemed necessary to remedy any neglect or
delay in the execution of the public printing, provided that no
contract, agreement, or arrangement entered into by this com­
mittee shall take effect until the same shall have been approved
by that house o f Congress to which the printing belongs, and
when the printing d elayed relates to the business o f both houses,
until both houses shall have approved o f such contract or a r­
rangement.
Ch. 1, 10 Stat. 35 (1852) (emphasis added).
The language of that section, particularly the underlined portion, manifests
its purpose: to allow the JCP to take remedial steps with regard to problems that
may arise in having Congress’ printing performed. The statute sought only to
govern printing work for either or both Houses of Congress. The proviso,
requiring one- or two-House approval for JCP remedial actions, was removed
3 Cf. Industrial Union D ep’t, AFL-CIO v. American Petroleum Inst., 448 U.S 607, 6 8 5 -8 6 (1980)
(R ehnquist, J., concurring) (delegation o f regulatory authority to executive must provide “intelligible prin­
ciple” to gu id e exercise o f discretion).
44
in 1894 when Congress passed an amendment which left the JCP alone in
charge of curing delay in congressional printing. The reason for the amendment
was that “[i]t seemed to the committee [JCP] that this approval of their action in
each instance by Congress would produce delay and defeat rather than advance
efforts to prevent neglect or delay.” 27 Cong. Rec. 30 (1894) (conference
report). Congress gave no indication of any intention to change the scope of the
JCP’s remedial powers. Evidently, therefore, the committee’s powers contin­
ued to extend only to the oversight of printing performed for either or both
Houses of Congress.
By the time the JCP obtained this authority to remedy delay in the public
printing without approval of either or both Houses, Congress had already
passed a resolution requiring all public printing to be done at the newly formed
government printing establishment (the precursor to § 501). Res. 25, 12 Stat.
118 (1860). Consequently, at the time Congress granted the JCP power over the
“public printing,” that term applied, without exception, to the operations of the
GPO alone. Bearing in mind this relation between the precursors to §§ 103 and
501, we believe the authority given the JCP to remedy delay “in the execution
of the public printing” was intended to extend only to the operations of the
GPO, itself an organization within the Legislative Branch.4 No subsequent
legislative history of which we are aware has evinced a congressional intention
to recast § 103 so that the JCP’s remedial powers over the public printing
would encompass operations outside the GPO.5 That section does not supply a
foundation for the JCP’s attempt to reach beyond the GPO to all related
activities irrespective of where they are conducted.
B. 44 U.S.C. § 501The second provision asserted as authority for the proposed regulations
explicitly grants the JCP power to approve certain Executive Branch decisions
regarding operation of field plant printing facilities. 44 U.S.C. § 501(2). Sec­
tion 501 also allows the JCP to approve the outside printing of other classes of
work when “necessary” or “urgent.” Id. § 501(1). Neither the statute nor its
history gives any suggestion, however, that the power to approve printing work
was intended to be expanded into an all-encompassing authority to regulate all
aspects of operations in the Executive Branch unrelated to the common under­
standing of “printing.”
The legislative history of § 501 reflects an evolution, first, from a rule
promulgated in 1860, requiring all printing to be done at the GPO, Res. 25, § 5,
12 Stat. 118 (1860), to an enactment of 1895, allowing exceptions to be
4 See Lewis v. Sawyer, 698 F.2d 1261, 1263 (D.C. Cir. 1983) (W ald, J., concurring) (citing § 103 as
exam ple o f congressional control over G PO in support o f conclusion that G PO is a legislative unit).
s The section was am ended in 1919, w hen the words “duplication" and “w aste” and the phrase “and the
distribution o f G overnm ent publications” were added. Ch. 86, § 11, 40 Stat. 1270 (1919). No discussion or
explanation o f the change appears in the legislative history. See 57 Cong. Rec. 3865 (1919); H.R. Rep. No.
1146, 65th Cong., 3d Sess. 7 (1919).
45
“provided by law,” ch. 23, § 87,28 Stat. 662 (1895). That provision was altered
in 1919, when Congress permitted certain classes of work to be done elsewhere
than in the District of Columbia if the JCP deemed it necessary, ch. 86, § 11,40
Stat. 1270 (1919), based on an explanation that such flexibility would save
money for the government, 57 Cong. Rec. 3865 (amending H.R. 14078, 65th
Cong., 3d Sess. (1919)). Finally, the two exceptions now codified in § 501
were enacted in 1949 to save further time and expense by permitting printing to
be accomplished in the area where it is needed. Pub. L. No. 156, 63 Stat. 405(1949). The explanations of the various amendments, although brief, indicate
that the JCP’s role was intended merely to ensure that the considerations of
efficiency and economy were met in every case. H.R. Rep. No. 841, 81st
Cong., 1st Sess. (1949), reprinted in 1949 U.S.C.C.A.N. 1515-16. Congress
has never expressed, in connection with § 501, that it expected the JCP’s
approval power to be expanded into authority for overseeing, specifying, and
regulating internal operations of the Executive Branch.
C. 4 4 U.S.C. § 5 0 2
Nor does § 502, which authorizes the Public Printer to obtain certain con­
tract work, expressly or impliedly endow the JCP with the power to regulate the
activities of the Executive Branch. By its terms that section allocates powers
between the JCP and the GPO, a division of responsibilities among units
largely within the Legislative Branch, and does not directly affect any activities
of Executive departments.
Notwithstanding the absence of any express legislative authority for the
JCP’s assumption of the role of a regulatory commission over Executive
Branch printing, word processing and information distribution systems, the
ICP Chairman has characterized the Committee’s efforts as a “regulatory
scheme.” 129 Cong. Rec. 32286 (1983). By redefining the statutory term
“printing,” the JCP has, in effect, attempted to control all functions related to
the creation of a written word or symbol, including “all systems, processes and
equipment used to plan . . . the form and style of an original reproducible
image.” Id. (Proposed Regulations, Title I, number 3). That attempt strays far
from the JCP’s statutory grant of authority under § 103, § 501, or § 502.
Because no legal foundation can be identified in support of either the
“regulatory” expansion of the statutory term “printing” or the breadth of the
entire proposed scheme over Executive Branch management decisions, estab­
lished principles of administrative law compel the conclusion that the JCP has
exceeded its statutory authority in issuing the proposed rules. Cf. 5 U.S.C.
§ 706(2)(c) (agency rulemaking); City o f Overton Park v. Volpe, 401 U.S. 402,
415 (1971); Schilling v. Rogers, 363 U.S. 666, 676-77 (1960); L. Jaffe,
Judicial C ontrol o f Administrative Action 359 (1965).
Although we believe that the proposed regulatory scheme lacks a valid
statutory basis, we proceed to examine the implications of the regulations for
the constitutional separation o f powers.
46
II. Legislative and Executive Functions
In view of the purported binding effect of the JCP’s proposed regulations on
Executive Branch agencies, the question arises whether the JCP, a Legislative
Branch entity, is seeking to exercise executive functions in a manner that
violates constitutional principles of the separation of powers. In Buckley v.
Valeo, 424 U.S. 1 (1976), the Supreme Court, p er curiam, struck down a
provision of the Federal Election Campaign Act of 1971 which gave the
Federal Election Commission, whose members were not all appointed by the
President, the power to perform broad functions, including rulemaking, for
enforcement of the Act. Id. at 141. The Court found that the Commission, so
composed, was constitutionally precluded from performing executive tasks,
because of the failure to comply with the Appointments Clause, U.S. Const, art.
II, § 2, cl. 2:
[The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established by
Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.
The pivotal term “Officers of the United States” was explained by the Court
to mean “any appointee[s] exercising significant authority pursuant to the laws
of the United States,” 424 U.S. at 126, and again as “all appointed officials
exercising responsibility under the public laws of the Nation.” Id. at 131.
Officials meeting these qualifications must be appointed in the manner pre­
scribed in Article II of the Constitution. Id. at 126. This is because the
Legislature “cannot ingraft executive duties upon a legislative office,” Id. at
136 (quoting Springer v. Philippine Islands, 277 U.S. 189, 202 (1928)); nor
can it insulate persons performing executive tasks from the President’s power
to remove them. Id. In short, the Court held that Congress may not itself
appoint persons to perform duties that may be performed only by an officer of
the United States.
In analyzing the powers conferred on the Federal Election Commission, the
Court in Buckley described three types of statutory functions: “functions relat­
ing to the flow of necessary information — receipt, dissemination, and investi­
gation; functions relating to the Commission’s task of fleshing out the statute
— rulemaking and advisory opinions; and functions necessary to ensure com­
pliance with the statute and rules — informal procedures, administrative deter­
minations and hearings, and civil suits.” 424 U.S. at 137. The Court held that
“insofar as the powers confided in the Commission are essentially of an
investigative and informative nature, falling in the same general category as
those powers which Congress might delegate to one of its own committees,”
47
the Commission as then composed could constitutionally exercise them. How­
ever, “when we go beyond this type of authority to the more substantial powers
exercised by the Commission, we reach a different result.” Id. at 137-38. The
Court held that each of the Commission’s functions related to rulemaking and
rendering advisory opinions “represents the performance of a significant gov­
ernmental duty exercised pursuant to a public law,” which could be performed
only by persons appointed in accordance with the Appointments Clause. Id.
at 141.
At the same time, the Supreme Court disavowed any intention to “deny to
Congress ‘all power to appoint its own inferior officers to carry out appropriate
legislative functions.’” 424 U.S. at 128. Because, as discussed above, members
of the JCP are not appointed in accord with Article II, we must address
whether, by issuing and implementing the proposed regulations, the JCP would
be performing functions of officers of the United States or merely carrying out
appropriate legislative functions.
Applying the rule of Buckley v. Valeo to the rulemaking powers arrogated to
itself by the JCP, we conclude that those powers are not “sufficiently removed
from the administration and enforcement of public law to allow [them] to be
performed by” persons not appointed in accordance with the Appointments
Clause. 424 U.S at 141. We have described above the nature and extent of the
JCP’s proposed involvement in the printing operations of the Executive Branch,
and the putatively binding nature of the JCP rules. Accordingly, like the
rulemaking and advice-giving functions of the Federal Election Commission at
issue in Buckley, the JCP’s activities “represent the performance of a signifi­
cant governmental duty exercised pursuant to a public law.” Id.Insofar as the JCP enjoys investigative and informative powers of the type
generally delegated to congressional committees, the Constitution is no bar to
its exercise of those powers. Buckley v. Valeo, 424 U.S. at 137; McGrain v.
Daugherty, 273 U.S. 135, 175 (1927). One might assert that the JCP’s powers
over the GPO are just such internal powers which allow it to control all
operations of the GPO and that Congress may constitutionally require all
Executive Branch agencies to use the GPO facilities for all their printing
needs.6 Because certain standards and rules must necessarily be permissible in
running the operations of the GPO, it might be suggested, the JCP inevitably
exerts some powers over Executive agencies, which might then arguably be
expanded to other arenas to the extent printing outside the GPO is permitted.
However, the proposed regulations bear no relation to the smooth operation of
the GPO; rather, they focus primarily on outside activities involving manage­
ment of information. Thus, the GPO foundation upon which to build the
expanded and comprehensive JCP regulatory structure is absent from the
proposed regulatory scheme. We do not believe the constitutional demarcation
of executive and legislative functions can be so easily eroded.
6 The constitu tio n ality o f a statute requiring all agencies to use the G PO for their printing is not an issue
necessary to evaluate the validity of the proposed regulations or the existing statutes. We therefore do not
attem pt to resolve this question.
48
The most egregious and illustrative provision in this regard is the require­
ment that each Executive department submit annually to the JCP a plan outlin­
ing its printing and distribution activities anticipated for the fiscal year and the
following two years. Under the proposed regulations, the JCP would review
each of these plans to determine its conformity with the objectives of the
“Federal printing program,” specifically evaluating the efficiency and cost
effectiveness of the plan and the printing and distribution requirements of the
Executive department. Only upon approval of the JCP could a department
implement its plan. This “Federal printing program,” a construct of the JCP,
clearly involves the interpretation and implementation of policy directives that
it is the job of the Legislature (acting as a legislature and not a committee) to
identify and of the Executive to fulfill. Each step in this “micro-management”
process constitutes a uniquely executive function, to execute faithfully the laws
as constitutionally enacted by Congress.
In sum, administrative functions such as policymaking and rulemaking are
quintessentially and traditionally executive duties; they are the duties of “Of­
ficers of the United States.” See Springer v. Philippine Islands, 277 U.S. 189,
202 (1928).7 Yet the JCP unequivocally acknowledges its intention “to replace
JCP micro-management procedures with oversight and policymaking func­
tions,” 129 Cong. Rec. 32285 (1983), and to establish a new “regulatory
scheme,” id. at 32285, all with respect to putative control of the Executive
Branch. We cannot reconcile this endeavor with the Supreme Court’s clear
delineation of the functions assigned to the three Branches of the Government
by the Constitution.8
This is not the first attempt at an express transformation of the JCP to a
policymaking executive body. In 1919, Congress attempted explicitly to pro­
vide, by statute, for a broad system of JCP regulatory authority not unlike the
present scheme. Under the bill, passed by both Houses of Congress,
no journal, magazine, periodical, or similar Government publi­
cation shall be printed, issued, or discontinued by any branch or
officer of the Government service unless the same shall have
been authorized under such regulations as shall be prescribed by
the Joint Committee on Printing . . . . [T]he foregoing provisions
of this section shall also apply to mimeographing, multigraphing,
1 Cf. Lewis v Sawyer, 698 F.2d 1261, 1263 (D.C. Cir. 1983) (W ald, J., concurring) (JCP’s order that Public
Printer halt furlough plans for GPO em ployees did not “encroach[] on another branch and thereby offend[]
the constitutional separation o f pow ers" only because GPO is a legislative, rather than an executive, unit).
Each branch o f the Federal G overnm ent can conduct the hiring and firing o f em ployees within that branch, to
carry out the respective m ission o f that branch, w ithout treading upon the separation-of-pow ers doctrine. O f
course, Congress can regulate hiring and firing o f civil servants in the Executive Branch, but only by
legislation, not by com m ittee fiat.
8 This conclusion w ould seem to apply equally to the “JC P m icro-m anagem ent procedures" currently in
place as well as the establishm ent by the JC P o f a new “regulatory schem e." It would seem irrefutable under
Buckley and Chadha that m icro-m anagem ent o f Executive Branch agencies is an inherently executive
function, and one w hich m ust therefore be perform ed by o fficers o f the U nited States duly appointed pursuant
to A rticle II o f the C onstitution.
49
and other processes used for the duplication of typewritten and
printed matter, other than official correspondence and office
records.
H.R. 12610, 66th Cong., 2d Sess. (1919).
President Wilson vetoed the bill, voicing an adamant repudiation of any right
Congress claimed to endow a committee “with power to prescribe ‘regulations’
under which executive departments may operate.”9 This historical perspective
highlights an important aspect of the separation of powers issue. Following
Congress’ failure to accomplish its objective once through a constitutional
process, the JCP may not now attempt to effect the same end by “regulation,”
circumventing the possible intervention of a Presidential veto. This usurpation
of executive power is the very evil that the Supreme Court recognized when it
quoted from The Federalist in its opinion in INS v. Chadha:
If even no propensity had ever discovered itself in the legislative
body to invade the rights of the Executive, the rules of just
reasoning and theoretic propriety would of themselves teach us
that the one ought not to be left to the mercy of the other, but
ought to possess a constitutional and effectual power of self-
defence.
462 U.S. at 947 (quoting The Federalist No. 73. at 458 (A. Hamilton) (H.
Lodge ed. 1888)).
III. Legislative Action
We next consider whether the JCP’s proposed regulations can be treated as
an exercise of Congress’ constitutional power to legislate and, if so, whether
the JCP could by itself exercise that legislative power. In 1690, John Locke
wrote that “the Legislative can have no power to transfer their Authority of
making Laws, and place it in other hands.” 10 Nearly three hundred years later,
the Supreme Court, in INS v. Chadha, restated the same principle as firmly
embodied in the United States Constitution. The Court forcefully articulated
the broad constitutional principle that all exercises of legislative power must
undergo bicameral passage and presentment to the President unless the Consti­
tution specifically authorizes a departure from the standard procedure. 462
U.S. at 946-51. Whether a particular action constitutes an exercise of legisla­
tive power requiring adherence to the rules of bicameral passage and present­
ment depends upon whether it is legislative in character. An action by Congress
9 V eto M essage on Legislative, Executive and Judicial A ppropriation B ill, H.R. Doc. No. 764, 66th Cong.,
2d Sess. 2 -3 (1920). President W ilso n 's veto message was one basis upon which, in 1933, then A ttorney
G eneral W illiam D. M itchell concluded that a statutory provision authorizing a joint com m ittee o f C ongress
to m ake final decisions regarding certain tax refunds w as a trespass upon the constitutional separation of
pow ers. H e reasoned that the provision “ attem pts to entrust to mem bers o f the legislative branch, acting ex
officio, executive functions in the execution o f the law , and it attem pts to give a com m ittee o f the legislative
branch pow er to approve o r disapprove executive acts.” 37 Op. A tt’y Gen. 56, 58 (1933).
10 J. Locke, Second Treatise of Government § 141, at 381 (P. Laslett ed. 1980).
50
is “legislative” if it purports to have “the purpose and effect of altering the legal
rights, duties and relations of persons, including . . . Executive Branch officials
.. ., outside the legislative branch.” Id. at 952.
Of the three statutory bases relied upon by the JCP for authority to issue its
proposed regulations, only one explicitly allows the committee to approve or
disapprove decisions of persons outside the Legislative Branch. 44 U.S.C.
§ 501(2). Section 501(2), which purports to allow the JCP unilaterally to create
exceptions to the general rule that all printing must be accomplished through
the GPO, would have the effect of empowering a committee of Congress to
forestall, regulate, revise or manage executive printing operations which have
been authorized through the legislative process in the form of authorization and
appropriations acts for the agencies involved. This action inevitably affects the
rights, duties, and relations of members of the other branches of government,
and appears to meet the test for legislative action.11
The Supreme Court has also indicated that, in determining whether an act is
legislative in character, it is useful to examine the nature of the congressional
action which the committee’s power supplants. Chadha, 462 U.S. at 962. Until
the predecessor to § 501 was amended in 1919 to give some discretion to the
JCP,12 all printing had been centralized in the GPO, “except in cases otherwise
provided by law.”13 This history suggests that the Committee’s power to create
exceptions to the statute originated as a substitute for plenary legislation — an
action indubitably legislative in character.
We conclude that § 501 improperly seeks to delegate legislative power to the
JCP in abrogation of the constitutional requirements of bicameral passage and
presentment. Consequently, even the bare statutory approval power —
unembellished by interpretative regulations — must fall as a compromise of
the constitutional requirements for legislative action.14
Under the other two sources of putative authority propounded by the JCP,
the proposed regulations fare no better. Although neither § 103 nor § 502
explicitly authorizes the JCP to affect the rights and relations of extra-legisla-
tive officials, the JCP proffers those sections as authority for placing con­
straints on the implementation of executive printing operations already sane-
11 Sim ilarly, § 501(1) purportedly enables the JCP, by itself, to create exem ptions from the legislated rule
that all printing be done at the G PO. Although it does not operate expressly upon the statutory functions o f the
Executive Branch, it does purport to delegate a legislative function to a com m ittee of Congress, which is also
im perm issible under Chadha. 462 U.S. at 952. Except insofar as the provision allow s the JC P to control the
internal printing affairs o f C ongress, id. at 955 n.21, it inevitably alters the rights, duties and relations o f
persons outside that branch by perm itting a com m ittee to effect an exception to a legislated rule, and therefore
is an unconstitutional exercise o f legislative power.
12 Ch. 86, § 11, 4 0 Stat. 1270 (1919) (printing to be done by GPO “except such classes o f work as shall be
deem ed by the Jo in t Com m ittee on Printing to be urgent o r necessary to have done elsew here than in the
D istrict o f C olum bia fo r the exclusive use o f any field service outside o f said D istrict”).
13 Ch. 23, § 87, 28 Stat. 662 (1895).
14 This O ffice recently provided an opinion devoted exclusively to the constitutionality o f the statutory
approval pow er granted the JC P in 44 U.S.C. § 501(2). The opinion concluded that this pow er is invalid under
INS v. Chadha, and that the ability o f Executive departm ents to conduct authorized field-plant printing
remains effective. M em orandum for W illiam H. Taft, IV, D eputy Secretary o f Defense, from Theodore B.
O lson, A ssistant A ttorney G eneral, O ffice o f Legal Counsel 15 (Mar. 2, 1984).
51
tioned with budget authority and appropriated funds. Insofar as the two sec­
tions can reasonably support the issuance of regulations restricting the lawful
operations of all agencies and departments of the Federal Government, they too
authorize a committee’s exercise of legislative power and therefore cannot
survive under Chadha. “A joint committee has not [sic] power to legislate, and
legislative power cannot be delegated to it.” 37 Op. Att’y Gen. 56, 58 (1933).
IV. Conclusion
The defects in the committee approval and regulatory mechanism discussed
here could well have been the object of the views articulated twenty-five years
ago by then-Acting Attorney General William P. Rogers:
Legislative proposals and enactments in recent years have re­
flected a growing trend whereby authority is sought to be vested
in congressional committees to approve or disapprove actions of
the executive branch. Of the several legislative devices em­
ployed, that which subjects executive department action to the
prior approval or disapproval of congressional committees may
well be the most inimical to responsible government. It not only
permits organs of the legislative branch to take binding actions
having the effect of law without the opportunity for the Presi­
dent to participate in the legislative process, but it also permits
mere handfuls of members to speak for a Congress which is
given no opportunity to participate as a whole. An arrangement
of this kind tends to undermine the President’s position as the
responsible Chief Executive.
41 Op. Att’y Gen. 300, 301 (1957).
For the reasons expressed above, we have concluded that the regulations
proposed by the Joint Committee on Printing are without foundation in law.
First, no statute grants to the JCP, with adequate specificity, authority to issue
regulations purporting to control operations within the Executive Branch for
which budget authority and appropriated funds exist. Second, the JCP’s at­
tempted performance of executive functions in administering the laws trans­
gresses the rule of separation of powers set forth in Buckley v. Valeo. Finally, a
congressional committee’s promulgation of rules binding on the other branches
runs afoul of the constitutional requirement, affirmed in INS v. Chadha, that all
legislative actions, with a few specifically stated exceptions not relevant here,
undergo bicameral passage and presentment to the President.
T h eo d o r e B. O lso n
A ssistant Attorney General
Office o f Legal Counsel
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